**Exhibit 99.20**

 

**FIRST AMENDMENT TO CREDIT AGREEMENT**

 

THIS FIRST AMENDMENT TOCREDIT AGREEMENT (this “Amendment”) is made as of the 29th day ofJuly, 2008, by and among AVOCENT CORPORATION, a Delaware corporation (the “Borrower”),the GUARANTORS party hereto (the “Guarantors”), the LENDERS party hereto (the “ApprovingLenders”) and REGIONS BANK, as the administrative agent (the “AdministrativeAgent”).

 

**R E C I T A L S****:**

 

The Borrower, the Guarantor,the Lenders from time to time party thereto and the Administrative Agent haveentered into that certain Credit Agreement dated as of June 16, 2006 (the “CreditAgreement”).  Capitalized terms usedin this Amendment which are not otherwise defined in this Amendment shall havethe respective meanings assigned to such terms in the Credit Agreement.

 

The Borrower and Guarantorshave requested the Administrative Agent and the Approving Lenders to amend theCredit Agreement on and after the date hereof upon the terms and conditionshereinafter set forth.

 

NOW, THEREFORE, inconsideration of the Recitals and the mutual promises contained herein and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the Borrower, the Guarantors, the Approving Lenders andthe Administrative Agent, intending to be legally bound hereby, agree asfollows:

 

# SECTION 1.                                Recitals.  The Recitals are incorporated herein byreference and shall be deemed a part of this Amendment.

#  

# SECTION 2.                                Amendments to Section 1.01.

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## SECTION 2.1.                                                                       Section 1.01 of the Credit Agreement is hereby amended by deletingthe definitions of “Applicable Margin,” “Base Rate Loan,” “Commitment,” “ComplianceCertificate,” “Eurodollar Loan,” “Lender,” “Notes,” “Permitted Acquisition,” “RequiredLenders,” “Termination Date,” and “Unused Commitment” and inserting thefollowing in lieu thereof:

##  

“Applicable Margin” means (a) forthe period commencing on and including the Amendment Date to and excluding thefirst Performance Pricing Determination Date following the Amendment Date, (i) forany Base Rate Loan, 0.25%, (ii) for any Eurodollar Loan, 1.750% and (iii) forthe Commitment Fees, 0.25%; and (b) from and after the first PerformancePricing Determination Date following the Amendment Date, (i) for any TermLoan A or Revolving Loan that is a Base Rate Loan or Eurodollar Loan, thepercentage determined on each Performance Pricing Determination Date byreference to the table set forth below as to the type of Loan or fee and theTotal Leverage Ratio for the quarterly or annual period ending immediatelyprior to such Performance Pricing Determination Date, (ii) for theCommitment Fee, the percentage determined on each Performance PricingDetermination Date by reference to the table set forth

 

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belowas to the fee and the Total Leverage Ratio for the quarterly or annual periodending immediately prior to such Performance Pricing Determination Date, and (iii) forany Term Loan B that is a Base Rate Loan or Eurodollar Loan, the percentagedetermined on each Performance Pricing Determination Date by reference to thepricing table set forth in Schedule 2.08, if any, as to the type of Loan or feeand the Total Leverage Ratio for the quarterly or annual period endingimmediately prior to such Performance Pricing Determination Date.

 

**For Revolving Loans and Term Loan A**

 
| ** **                                                       | ** ** | **Applicable Margin** | ** ** |
|------------------------------------------------------------------|------------|----------------------------|------------|
| **Total Leverage Ratio**                               | ** ** | **Eurodollar  Loans**      | ** ** | **Base Rate  Loans** | ** ** | **Commitment  Fee** | ** ** |
| Greater than or equal to 2.50 to 1.00                            |       | 2.250                      | %          | 0.750 | % | 0.350 | % |
| Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00 |       | 2.000                      | %          | 0.500 | % | 0.300 | % |
| Greater than or equal to 1.50 to 1.00 but less than 2.00 to 1.00 |       | 1.750                      | %          | 0.250 | % | 0.250 | % |
| Greater than or equal to 1.00 to 1.00 but less than 1.50 to 1.00 |       | 1.500                      | %          | 0.000 | % | 0.200 | % |
| Less than 1.00 to 1.00                                           |       | 1.250                      | %          | 0.000 | % | 0.150 | % |

 

In determining interest forpurposes of Section 2.06 and the Commitment Fees for purposes of Section 2.07,the Borrower and the Administrative Agent shall refer to the Borrower’s mostrecent consolidated quarterly and annual (as the case may be) financial statementsdelivered pursuant to Section 6.01(a) or (b), as the case maybe.  If such financial statements requirea change in interest pursuant to Section 2.06 or the Commitment Feespursuant to Section 2.07, the Borrower shall deliver to the AdministrativeAgent, along with such financial statements, a notice to that effect, whichnotice shall set forth in reasonable detail the calculations supporting therequired change.  The “PerformancePricing Determination Date” is the date which is (A) fifty (50) days afterthe end of each of the first three (3) Fiscal Quarters of each Fiscal Yearand (B) one hundred (100) days after the end of each Fiscal Year.  Any such required change in interest and feesshall become effective on such Performance Pricing Determination Date, andshall be in effect until the next Performance Pricing Determination Date,provided that no fees or interest shall be decreased pursuant to Section 2.06or Section 2.07 if a Default is in existence on the Performance PricingDetermination Date; provided, further, that if the Borrower fails to deliverfinancial statements as required by Section 6.01(a) or (b), as thecase may be, the Applicable Margin

 

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shallbe the highest Applicable Margin provided for in the above table or in Schedule2.08, if any, and shall apply from and including the date such financialstatements were due to but excluding the date such financial statements arereceived by the Administrative Agent.

 

“Base Rate Loan” means a TermLoan or a Revolving Loan that bears or is to bear interest at a rate based uponthe Base Rate, and is to be made as a Base Rate Loan pursuant to the applicableNotice of Borrowing, Notice of Continuation or Conversion, Section 2.01, Section 2.02(e) orArticle X, as applicable.

 

“Commitment” means theRevolving Commitments and the Term Loan Commitments.

 

“Compliance Certificate”means a certificate executed by the chief financial officer or the chiefaccounting officer of the Borrower substantially in the form of Exhibit Gor any other form approved by the Administrative Agent.

 

“Eurodollar Loan” means a Term Loan or Revolving Loan that bears or isto bear interest at a rate based upon the Adjusted London Interbank OfferedRate, and to be made as a Eurodollar Loan pursuant to a Notice of Borrowing orcontinued as or converted to a Eurodollar Loan pursuant to a Notice ofContinuation or Conversion.

 

“Lender” means each of theRevolving Lenders and the Term Loan Lenders.

 

“Notes” means, to the extentrequested by any Lender pursuant to Section 2.04, the promissory notes ofthe Borrower, substantially in the form of Exhibit A for RevolvingLoans and Revolving Lenders and substantially in the form of Exhibit Ifor the Term Loans and Term Loan Lenders, evidencing the obligation of theBorrower to repay the Revolving Loans and Term Loans, together with allamendments, consolidations, modifications, renewals and supplements thereto.

 

“Permitted Acquisition”means any Anticipated Acquisition by the Borrower or a Subsidiary or any otherAcquisition by the Borrower or a Subsidiary of any business which is engaged inthe same or related line of business as the Borrower or any of itsSubsidiaries, all with respect to which each of the following requirementsshall have been satisfied:  (a) asof the closing of any Acquisition, the Acquisition has been approved andrecommended by the board of directors or similar governing body of the Personto be acquired or from which such business is to be acquired; (b) not lessthan three (3) Business Days prior to the closing of any Acquisition, theBorrower shall have delivered to the Administrative Agent an AcquisitionCertificate certifying compliance with the terms and conditions of the LoanDocuments, after giving effect to the Acquisition, including pro forma incomeand balance sheet projections for the Borrower and its Subsidiaries (aftergiving effect to the Acquisition); (c) as of the

 

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closingof any Acquisition, no Default shall exist or occur as a result of, and aftergiving effect to, such Acquisition; and (d) with respect to anyAcquisition that is a merger, consolidation, amalgamation or other combinationby the Borrower or any Subsidiary with another Person, such merger, consolidation,amalgamation or other combination must comply with the requirements of Section 7.02.

 

“Required Lenders” means atany time Lenders having at least 66 2/3% of the aggregate amount of the sum of (a) RevolvingCommitments or, if the Revolving Commitments are no longer in effect, aggregateoutstanding principal amount of the sum of (i) the Revolving Loans and (ii) theLetter of Credit Obligations, plus (b) the aggregate outstanding principalamount of the Term Loans.

 

“Termination Date” means theearlier to occur of (i) June 16, 2011, (ii) the date theRevolving Commitments are terminated pursuant to Section 8.01 followingthe occurrence of an Event of Default, or (iii) the later of (y) thedate the Borrower terminates the Revolving Commitments entirely pursuant to Section 2.08and repays all Obligations.

 

“Unused Commitment” means atany date, an amount equal to (a) the aggregate amount of all the RevolvingCommitments on such date less (b) the sum on such date of the aggregateoutstanding principal amount of the Revolving Loans plus the aggregateoutstanding amount of the Letter of Credit Obligations.

 

## SECTION 2.2.                                                                       Section 1.01 of the Credit Agreement is hereby further amended byadding the following additional defined terms in alphabetical order:

##  

“Amendment Date” means July 29,2008.

 

“Acquisition Certificate”means a certificate executed by the chief financial officer or the chiefaccounting officer of the Borrower substantially in the form of Exhibit Hor any other form approved by the Administrative Agent.

 

“Additional Lender” meansthe Additional Revolving Lenders and the Additional Term Loan B Lenders.

 

“Additional Revolving Lender”has the meaning set forth in Section 2.08(c).

 

“Additional Term Loan ALender” has the meaning set forth in Section 2.01(b)(ii).

 

“Additional Term Loan BLender” has the meaning set forth in Section 2.08(d).

 

“Anticipated Acquisition”means the acquisition of Touchpaper Group Limited and Ergo 2000, Inc. andthe possible acquisition of a company identified to the Lenders as ProjectAlpha.

 

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“Commitment and Acceptance”means, (a) with respect to any Additional Revolving Lender a commitment andacceptance substantially in the form of Exhibit C-1 hereto, (b) with respect to any Additional Term Loan A Lender a commitment andacceptance substantially in the form of Exhibit C-2 hereto, and (c) with respect to any Additional Term Loan B Lender a commitment andacceptance substantially in the form of Exhibit C-3 hereto.

 

“Defaulting Lender” means,as of any date, any Lender that has (a) failed to make a Loan required tobe made by it hereunder, (b) given notice to the Administrative Agent orthe Borrower that it will not make, or that it has disaffirmed or repudiatedany obligation to make, any Loan hereunder (unless such notice is given by allLenders) or (c) been deemed insolvent or become the subject of abankruptcy or insolvency proceeding.

 

“First Tier Foreign Subsidiary” means anyForeign Subsidiary the equity capital interests of which are directly owned bya Domestic Subsidiary.

 

“First Tier Foreign Subsidiary Voting Equity”means voting power in the form of capital stock, membership interest,partnership interest or other ownership interest, as applicable, in any First TierForeign Subsidiary, the holders of which are ordinarily, in the absence ofcontingencies, entitled to elect the directors, managers or similar governingbody (or Persons performing similar functions) of such First Tier ForeignSubsidiary.

 

“Foreign Acquisition” meansany transaction or series of related transactions for the purpose of, orresulting in, directly or indirectly (a) the acquisition by the Borroweror any Subsidiary of all or substantially all of the assets of a Person or ofany business or division of a Person which assets are located outside of theUnited States of America, (b) the acquisition by the Borrower or anySubsidiary of more than 50% of any class of Voting Stock (or similar ownershipinterests) of any Person organized under the laws of any country other than theUnited States of America or a state thereof, or (c) a merger,consolidation, amalgamation or other combination by the Borrower or anySubsidiary with another Person organized under the laws of any country otherthan the United States of America or a state thereof; provided that AnticipatedAcquisitions shall not be included in this definition of “Foreign Acquisition”.

 

“Increase Date” has themeaning set forth in Section 2.08(f).

 

“New Lender” means the NewRevolving Lenders and the New Term Loan B Lenders.

 

“New Revolving Lender” hasthe meaning set forth in Section 2.08(c).

 

“New Term Loan A Lender” hasthe meaning set forth in Section 2.01(b)(ii).

 

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“New Term Loan B Lender” hasthe meaning set forth in Section 2.08(d).

 

“Permitted AffiliateTransactions” means the following events or transactions,individually and collectively:  (i) PermittedWinding Up Events, which, for a specific period, do not exceed the PermittedWinding Up Threshold for such specific period; (ii) business lines,business operations, assets (for the avoidance of any doubt assets are meant toinclude ownership of equity interests in each Subsidiary) or any combinationthereof may be transferred (A) among or between any of the Loan Parties, (B) amongor between any Loan Party and any First Tier Foreign Subsidiary except forshares in Domestic Subsidiaries which may only be transferred between LoanParties, (C) among or between any of the First Tier Foreign Subsidiaries; (D) amongor between any of the Foreign Subsidiaries which are not First Tier ForeignSubsidiaries; or (E) among or between any First Tier Foreign Subsidiaryand any Foreign Subsidiary which is not a First Tier Foreign Subsidiary so longas the aggregate assets transferred after the Amendment Date by any First TierForeign Subsidiary shall be held by a Foreign Subsidiary which is directly orindirectly Controlled by a Pledged First Tier Foreign Subsidiary; (iii) theBorrower may merge with another Person if (A) such Person was organizedunder the laws of the United States of America or one of its states, (B) theBorrower is the corporation surviving such merger and (C) immediatelyafter giving effect to such merger, no Default shall have occurred and becontinuing; (iv) any Permitted Merger; (v) any Foreign Subsidiary maybe dissolved so long as (A) the transactions related to the dissolutionand winding up process are made in accordance with this Agreement, and (B) thefinal distribution of assets or value is made in accordance with applicable lawto the equity holders of such Foreign Subsidiary; or (vi) intercompanytransactions as permitted by law and in the ordinary course of business andpursuant to terms which are no less favorable to such Loan Party or suchSubsidiary than would be obtained in a comparable arm’s length transaction witha Person which is not an Affiliate; and (vii) other intercompanytransactions in the ordinary course of business and consistent with theBorrower’s business practices which include but are not limited to (A) allocatingand sharing costs and expenses among the Borrower and its Subsidiaries forinsurance, research and development, marketing and other similar costs andexpenses, (B) transactions that are for the purpose of stock compensationcross-charges paid to the Borrower by a Foreign Subsidiary for stock options orrestricted stock units of the Borrower issued to employees of such ForeignSubsidiary, (C) intellectual property licensing, and (D) Investmentspermitted by Section 7.06.

 

“Permitted Winding Up Events” means,individually and collectively, the following events or transactions: (i) thediscontinuance or elimination of any business line or segment (in a singletransaction or in a series of related transactions) by Borrower and anySubsidiary; and (ii) the discontinuance or elimination of the operationsof any Subsidiary; provided that “Permitted Winding Up Events” shall notinclude Permitted Mergers.

 

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“Permitted Winding Up Threshold” means, forany Fiscal Quarter, the aggregate assets to be utilized in (i) a businessline or segment to be discontinued by the Borrower or any Subsidiary, or (ii) theoperations of any Subsidiary to be discontinued, when combined with all othersuch assets or operations so utilized within such fiscal quarter and theimmediately preceding three (3) Fiscal Quarters, shall not exceed either (x) sevenand one-half percent (7.5%) of Total Assets at the end of the most recent FiscalYear immediately preceding such Fiscal Quarter, or (y) have contributed nomore than seven and one-half percent (7.5%) of EBITDA during the four (4) FiscalQuarters immediately preceding such Fiscal Quarter.

 

“Permitted Mergers” means (i) DomesticSubsidiaries may merge with one another or with a Foreign Subsidiary so long asthe surviving entity is a Domestic Subsidiary and is a Guarantor; and (ii) ForeignSubsidiaries may merge with one another so long as, if a Foreign Subsidiarywhich is merging is a First Tier Foreign Subsidiary, either (a) thesurviving entity is a First Tier Foreign Subsidiary or (b) the survivingForeign Subsidiary is directly or indirectly Controlled by a Pledged First TierForeign Subsidiary.

 

“Pledged First Tier Foreign Subsidiary” meansany First Tier Foreign Subsidiary subject to a pledge agreement in favor of theAdministrative Agent in accordance with Section 6.08(b).

 

“Revolving Commitment”means, with respect to each Revolving Lender, (i) the amount set forthopposite the name of such Lender on Schedule 1.01, and (ii) as toany Lender which enters into any Commitment and Acceptance or Assignment andAssumption (whether as assignor or as assignee thereunder), the amount of suchLender’s Commitment after giving effect to such Commitment and Acceptance orAssignment and Assumption, in each case as such amount may be reduced from timeto time pursuant to Sections 2.08 and 2.09. The initial aggregate Revolving Commitment is $250,000,000.

 

“Revolving Lender” meanseach financial institution listed on Schedule 1.01 as having a RevolvingCommitment (as the same may be amended from time to time by the AdministrativeAgent to reflect assignments made in accordance with Section 12.07), andany other lender who becomes a party hereto pursuant to Section 2.08(b) or12.07, and their successors and assigns.

 

“Revolving Loan IncreaseRequest” has the meaning set forth in Section 2.08(b).

 

“Revolving Loans” has themeaning set forth in Section 2.01(a). Any Revolving Loan may be a Base Rate Loan or a Eurodollar Loan.

 

“SEC Filings” means thatcertain Form 10-Q of the Borrower filed with the SEC on May 6, 2008for the quarterly period ended March 28, 2008 and that

 

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certainForm 10-K of the Borrower filed with the SEC on February 21, 2008 forthe fiscal year ended December 31, 2007.

 

“Term Loan” means,individually or collectively, the Term Loan A and the Term Loan B.  Any Term Loan may be a Base Rate Loan or aEurodollar Loan.

 

“Term Loan A” has themeaning set forth in Section 2.01(b)(i). The Term Loan A may be a Base Rate Loan or a Eurodollar Loan.

 

“Term Loan A Advance Date”means, with respect to any Additional Term Loan A Lender, the date on which allTerm Loan A Conditions have been met with respect to such AdditionalTerm Loan A Lender’s Commitment, which such date shall be mutually agreed uponby the Borrower, such Additional Term Loan A Lender and the AdministrativeAgent.

 

“Term Loan A Commitment”means, with respect to each Term Loan A Lender, (i) the amount set forthopposite the name of such Lender on Schedule 1.02 at the time of, orprior to the making of, the Term Loan A by such Term Loan A Lender, (ii) asto any Additional Term Loan A Lender which enters into any Commitment and Acceptance,the amount of such Term Loan A Lender’s Commitment set forth in the applicableCommitment and Acceptance after giving effect thereto at the time of, or priorto the making of the Term Loan A by such Additional Term Loan A Lender, and (iii) theaggregate amount of the outstanding Term Loan A held by any Term Loan A Lenderafter the making of the Term Loan A in accordance with Section 2.01(b).  The aggregate amount of all Term Loan ACommitments shall not exceed $100,000,000.

 

“Term Loan A Conditions” hasthe meaning set forth in Section 2.01(b)(ii).

 

“Term Loan A Increase” hasthe meaning set forth in Section 2.01(b)(ii).

 

“Term Loan A Lender” means (i) atthe time of, or prior to the making of, any advance of Term Loan A, eachfinancial institution listed on Schedule 1.02 as having a Term Loan ACommitment and each other financial institution agreeing to advance a portionof the Term Loan A in accordance with Section 2.01(b), and (ii) afterthe making of any advances of Term Loan A, each financial institution holding aportion of the outstanding Term Loan A after giving effect to any assignmentsmade in accordance with Section 12.07, and their successors and assigns.

 

“Term Loan B” shall have themeaning set forth in Section 2.08(b).

 

“Term Loan B Advance Date” shall have the meaning set forth in Section 2.08(h).

 

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“Term Loan B Request” hasthe meaning set forth in Section 2.08(b).

 

“Term Loan B Commitment”means, with respect to each Term Loan B Lender, (i) the amount set forthopposite the name of such Lender on Schedule 2.08 at the time of, orprior to the making of, the Term Loan B, and (ii) the aggregate amount ofthe outstanding Term Loan B held by any Term Loan B Lender after the making ofthe Term Loan B in accordance with Section 2.08, and the aggregate amountof all Term Loan B Commitments shall not exceed $100,000,000.

 

“Term Loan B Lender” means (i) atthe time of, or prior to the making of, Term Loan B, each financial institutionlisted on Schedule 2.08 as having a Term Loan B Commitment and (ii) afterthe making of the Term Loan B, each financial institution holding a portion ofthe outstanding Term Loan B after giving effect to any assignments made inaccordance with Section 12.07, and their successors and assigns.

 

“Term Loan B” has themeaning set forth in Section 2.08(b). The Term Loan B may be a Base Rate Loan or a Eurodollar Loan.

 

“Term Loan Commitments”means collectively, the Term Loan A Commitments and the Term Loan BCommitments.

 

## SECTION 2.3.                                                                       Section 1.01 of the Credit Agreement is hereby further amended bydeleting “any Loan Party” and inserting “the Borrower” in lieu thereof in thedefinition of “Foreign Lender”.

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## SECTION 2.4.                                                                       Section 1.01 of the Credit Agreement is hereby further amended bydeleting “Telerate Page 3750” and inserting “Reuters Screen Libor 01” inlieu thereof in the definition of “London Interbank Offered Rate”.

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## SECTION 2.5.                                                                       Section 1.01 of the Credit Agreement is hereby further amended byinserting “and shall include the target business of any Anticipated Acquisitionactually acquired by Borrower” at the end of the definition of “Subsidiary”.

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# SECTION 3.                                Amendment to Section 2.01.  Section 2.01 of the Credit Agreement ishereby amended by deleting such Section in its entirety and inserting thefollowing in lieu thereof:

#  

**Section 2.01****                           ****Commitmentsto Lend****.**

 

#### (a)                                  Each Revolving Lenderseverally agrees, on the terms and conditions set forth herein, to makerevolving loans (collectively, the “Revolving Loans”, and each a “RevolvingLoan”) to the Borrower from time to time before the Termination Date; providedthat, immediately after each such Revolving Loan is made, the aggregateoutstanding principal amount of Revolving Loans by such Lender shall not exceedthe amount of its Revolving Commitment, and the

 

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#### aggregate outstanding principal amount of all Revolving Loans plus theaggregate outstanding amount of the Letter of Credit Obligations shall notexceed the aggregate amount of the Revolving Commitments.  Each Borrowing under this Section 2.01(a) shallbe in an aggregate principal amount of $5,000,000 or any larger integralmultiple of $1,000,000 (except that any such Borrowing may be in the aggregateamount of the Unused Commitments) and shall be made by the several RevolvingLenders ratably in proportion to their respective Revolving Commitments.  Within the foregoing limits, the Borrower mayborrow under this Section 2.01(a), repay or, to the extent permitted by Section 2.10,prepay Loans and reborrow under this Section 2.01(a) at any timebefore the Termination Date.

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#### (b)                                 (i) Each Term Loan ALender severally agrees, on the terms and conditions set forth herein, to makea term loan (collectively, the “Term Loan A”) to the Borrower on the AmendmentDate.

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#### (ii)                                  At any time prior to theTermination Date so long as the aggregate principal amount of the Term Loan Aadvanced hereunder is less than $100,000,000, the amount of the Term Loan Aoutstanding may be increased (a “Term Loan A Increase”) either by having one ormore Eligible Assignees (other than Lenders then holding a Commitmenthereunder) approved by the Borrower and the Administrative Agent (each a “NewTerm Loan A Lender”) become Term Loan A Lenders hereunder and/or by having anyone or more Lenders then holding a Commitment hereunder (at their respectiveelection in their sole discretion) that have been approved by the Borrower andthe Administrative Agent (which consents will not be unreasonably withheld)increase the amount of their Term Loan A Commitments or obtain a Term Loan ACommitment (any such Lender that elects to increase its, or obtain a, Term LoanA Commitment and any New Term Loan A Lender being hereinafter referred to as an“Additional Term Loan A Lender”).  AnyTerm Loan A Increase shall be subject to the following conditions (the “TermLoan A Conditions”): (A) unless otherwise agreed by the Borrower and theAdministrative Agent, the Term Loan A Commitment of any New Term Loan A Lendershall not be less than $10,000,000; (B) unless otherwise agreed by theBorrower and the Administrative Agent, the increase in the Commitment of anyLender shall be not less than $5,000,000; (C) after giving effect to anyTerm Loan A Increase, the aggregate Commitments hereunder shall not exceed$450,000,000 and the aggregate Term Loan A advanced hereunder shall not exceed$100,000,000; (D) the Borrower and each Additional Term Loan A Lendershall have executed and delivered a Commitment and Acceptance and theAdministrative Agent shall have accepted and executed the same (whichacceptance shall not be unreasonably withheld); (E) the Borrower shallhave executed and delivered to the Administrative Agent a Note payable to theorder of each Additional Term Loan A Lender, each such Note to be in the amountof such Additional Term Loan A Lender’s Term Loan A Commitment or increasedTerm Loan A Commitment (as applicable); (F) the Borrower shall havedelivered to the Administrative Agent an opinion of counsel (similar to the formof opinion delivered on the Closing Date, modified to apply

 

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#### to the increase in the aggregate Term Loan A Commitments and each Noteand Commitment and Acceptance executed and delivered in connection therewith); (G) theGuarantors shall have delivered to the Administrative Agent a writteninstrument confirming their consent to the new Term Loan A Commitments and thatthe Guaranty continues in full force and effect; (H) the Borrower and eachAdditional Term Loan A Lender shall otherwise have executed and delivered suchother instruments and documents as the Administrative Agent shall havereasonably requested in connection with such new Term Loan A Commitments orincreases in Term Loan A Commitments (as applicable); (I) the Borrowershall pay (i) to the Administrative Agent for the account of theAdditional Term Loan A Lenders an upfront fee related to the increased TermLoan A Commitments and (ii) to the Administrative Agent or its affiliatean arrangement fee related to the Term Loan A Increase, and such fees shall bein an amount to be determined by the Borrower and the Administrative Agent, andpayable on the applicable Term Loan A Advance Date; and (J) no Defaultshall exist on the applicable Term Loan A Advance Date after giving effect tothe increase in the aggregate Term Loan A Commitments.  The form and substance of the documentsrequired under clauses (D) through (H) above shall be fullyacceptable to the Administrative Agent in its reasonable discretion.  The Administrative Agent shall providewritten notice to Lenders following any such increase in the aggregate TermLoan A Commitments hereunder and shall furnish to Lenders, upon request, copiesof each Commitment and Acceptance.  EachAdditional Term Loan A Lender severally agrees, on the terms and conditions setforth herein, to make its advance of Term Loan A to the Borrower on the datethe Term Loan A Conditions are met with respect to such additional Term Loan ALender.

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#### (iii)                               Each Borrowing under this2.01(b) shall be made by the several Term Loan A Lenders ratably inproportion to their respective Term Loan A Commitments.

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#### (c)                                  The Borrower may not repayand reborrow the Term Loan A, the Term Loan B or any portion thereof.

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# SECTION 4.                                Amendment to Section 2.02.  Section 2.02 of the Credit Agreement ishereby amended by deleting such Section in its entirety and inserting thefollowing in lieu thereof:

#  

**Section 2.02****                           ****Methodof Borrowing Loans****.**

 

#### (a)                                  The Borrower shall give theAdministrative Agent notice (a “Notice of Borrowing”), which shall besubstantially in the form of Exhibit B and signed by the ChiefExecutive Officer, President or Chief Financial Officer of the Borrower, priorto (i) 9:30 a.m. (Eastern time) on the same Business Day of each BaseRate Borrowing, and (ii) 11:00 a.m. (Eastern time) at least three (3) BusinessDays before each Eurodollar Borrowing, specifying:  (A) the date of such Borrowing, whichshall be a Business Day, (B) the aggregate amount of such Borrowing, (C) whetherthe Loans comprising such Borrowing are to be

 

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#### Revolving Loans or the Term Loan and whether the Loans comprising suchBorrowing are to be Base Rate Loans or Eurodollar Loans, and (D) in thecase of a Eurodollar Borrowing, the duration of the Interest Period applicablethereto, subject to the provisions of the definition of Interest Period.

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#### (b)                                 Upon receipt of a Notice ofBorrowing, the Administrative Agent shall promptly notify each Revolving Lenderor Term Loan Lender, as applicable, of the contents thereof and of suchRevolving Lender’s or Term Loan Lender’s, as applicable, ratable share of suchBorrowing and such Notice of Borrowing, once received by the AdministrativeAgent, shall not thereafter be revocable by the Borrower.

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#### (c)                                  Not later than 11:00 a.m.(Eastern time) on the date of each Eurodollar Borrowing, and not later than2:00 p.m. (Eastern time) on the date of each Base Rate Borrowing, eachRevolving Lender or Term Loan Lender, as applicable, shall (except as providedin paragraph (d) of this Section) make available its ratable share of suchBorrowing, in Federal or other funds immediately available in Atlanta, Georgia,to the Administrative Agent at its address determined pursuant to Section 12.01.  Unless the Administrative Agent determinesthat any applicable condition specified in Article IV has not beensatisfied, the Administrative Agent will make the funds so received from theapplicable Lenders available to the Borrower at the Administrative Agent’saforesaid address.

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#### (d)                                 Notwithstanding anything tothe contrary contained in this Agreement, no Eurodollar Borrowing may be madeif there shall have occurred a Default, which Default shall not have been curedor waived.

####  

#### (e)                                  In the event that a Noticeof Borrowing fails to specify whether the Loan(s) comprising suchBorrowing are to be Revolving Loans or the Term Loan, such Loan(s) shallbe made as Revolving Loans.  In the eventthat a Notice of Borrowing fails to specify whether the Loans comprising suchBorrowing are to be Base Rate Loans or Eurodollar Loans, such Loans shall bemade as Base Rate Loans.  If the Borroweris otherwise entitled under this Agreement to repay any Loans maturing at theend of an Interest Period applicable thereto with the proceeds of a newBorrowing, and the Borrower fails to repay such Loans using its own moneys andfails to give a Notice of Borrowing in connection with such new Borrowing, anew Borrowing shall be deemed to be made on the date such Loans mature in an amountequal to the principal amount of the Loans so maturing, and the Loanscomprising such new Borrowing shall be Base Rate Loans.

####  

#### (f)                                    Notwithstanding anything tothe contrary contained herein, there shall not be more than nine (9) InterestPeriods outstanding at any given time.

 

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# SECTION 5.                                Amendmentto Section 2.03.  Section 2.03of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

#### **Section 2.03****                            Continuationand Conversion Elections.**  Bydelivering a notice in form and substance acceptable to the AdministrativeAgent (a “Notice of Continuation or Conversion”), to the Administrative Agenton or before 12:00 p.m., Eastern time, on a Business Day, the Borrower mayfrom time to time irrevocably elect, by notice on the same Business Day in thecase of a conversion to Base Rate Loans or three (3) Business Days priorin the case of a continuation of or conversion to Eurodollar Loans, that all,or any portion in an aggregate principal amount of $5,000,000 or any largerintegral multiple of $1,000,000 be, (i) in the case of Base Rate Loans,converted into Eurodollar Loans or (ii) in the case of Eurodollar Loans,converted into Base Rate Loans or continued as Eurodollar Loans; provided,however, that (x) each such conversion or continuation of any RevolvingLoans shall be pro rated among the applicable outstanding Revolving Loans ofall Revolving Lenders that have made such Revolving Loans, (y) each suchconversion or continuation of the Term Loan shall be pro rated among the TermLoan Lenders that have made such Term Loan, and (z) no portion of theoutstanding principal amount of any Loans may be continued as, or be convertedinto, any Eurodollar Loan when any Default has occurred and is continuing.  In the absence of delivery of a Notice ofContinuation or Conversion with respect to any Eurodollar Loan at least three (3) BusinessDays before the last day of the then current Interest Period with respectthereto, such Eurodollar Loan shall, on such last day, automatically convert toa Base Rate Loan.

####  

# SECTION 6.                                Amendmentto Section 2.06.  Section 2.06of the Credit Agreement is hereby amended by adding a new subsection (e) asfollows:

#  

(e)                                  If,as a result of any restatement of or other adjustment to the financial statementsof the Borrower or for any other reason, the Lenders determine or are madeaware that (A) the Total Leverage Ratio as calculated by the Borrower asof any applicable date was inaccurate and (B) a proper calculation of theTotal Leverage Ratio would have resulted in different pricing for any period,then (1) if the proper calculation of the Total Leverage Ratio would haveresulted in higher pricing for such period, the Borrower shall automaticallyand retroactively be obligated to pay to the Administrative Agent (for theratable benefit of the Lenders), promptly on demand by the AdministrativeAgent, an amount equal to the excess of the amount of interest and fees thatshould have been paid for such period over the amount of interest and feesactually paid for such period, and (2) if the proper calculation of theTotal Leverage Ratio would have resulted in lower pricing for such period, theAdministrative Agent and the Lenders shall have no obligation to repay anyinterest or fees to the Borrower; provided that if, as a result of anyrestatement or other event a proper calculation of the Total Leverage Ratiowould have resulted

 

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in higherpricing for one or more periods and lower pricing for one or more other periods(due to the shifting of income or expenses from one period to another period orany similar reason), then the amount payable by the Borrower pursuant to clause(1) above shall be based upon the excess, if any, of the amount ofinterest and fees that should have been paid for all applicable periods overthe amount of interest and fees paid for all such periods.

 

# SECTION 7.                                Amendmentto Section 2.08.  Section 2.08of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

#### **Section 2.08****                            OptionalTermination, Reduction or Increase of Commitments.**

####  

#### (a)                                  TheBorrower may, upon at least three (3) Business Days’ notice to theAdministrative Agent, terminate at any time, or proportionately reduce theUnused Commitments from time to time by an aggregate amount of at least$5,000,000 or any larger integral multiple of $1,000,000.  If the Revolving Commitments are terminatedin their entirety, the Commitment Fees (as provided under Section 2.07)shall be due and payable on the effective date of such termination.  All terminations or reductions of RevolvingCommitments shall be permanent.  Eachreduction shall be made ratably among the Revolving Lenders in accordance withtheir respective Revolving Commitments.

####  

#### (b)                                 Subjectto the provisions of this Section 2.08, the Borrower may request, at anytime and from time to time prior to the Termination Date, by notice to theAdministrative Agent, an increase of the aggregate Revolving Commitments (“RevolvingLoan Increase Request”) or the addition of a new term loan facility hereunder(“Term Loan B Request”) within the limitations hereinafter set forth, whichrequest shall set forth the amount of such requested increase, whether suchincrease is an increase in the Aggregate Revolving Commitments or a new termloan facility hereunder (“Term Loan B”).

####  

#### (c)                                  Withinthirty (30) days of a Revolving Loan Increase Request, the aggregate RevolvingCommitments may be so increased either by having one or more Eligible Assignees(other than Lenders then holding a Commitment hereunder) approved by theBorrower and the Administrative Agent (each a “New Revolving Lender”) becomeRevolving Lenders hereunder and/or by having any one or more Lenders thenholding a Commitment hereunder (at their respective election in their solediscretion) that have been approved by the Borrower and the AdministrativeAgent (which consents will not be unreasonably withheld) increase the amount oftheir Revolving Commitments or obtain a Revolving Commitment (any such Lenderthat elects to increase its, or obtain a, Revolving Commitment and any NewRevolving Lender being hereinafter referred to as an “Additional RevolvingLender”).

####  

#### (d)                                 Withinthirty (30) days of a Term Loan B Request, the Term Loan B facility shall beadded to this Agreement either by having one or more Eligible

 

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#### Assignees (other than Lenders then holding aCommitment hereunder) approved by the Borrower and the Administrative Agent(each a “New Term Loan B Lender”) become a Term Loan B Lender hereunder and/orby having any one or more Lenders then holding a Commitment hereunder (at theirrespective election in their sole discretion) that have been approved by theBorrower and the Administrative Agent (which consents will not be unreasonablywithheld) become a new Term Loan B Lender and obtain a Term Loan B Commitment(any such Lender that elects to increase its Commitment by obtaining a TermLoan B Commitment and any New Term Loan B Lender being hereinafter referred toas an “Additional Term Loan B Lender”).

####  

#### (e)                                  Anyincrease in the aggregate Revolving Commitments or the addition of the TermLoan B hereunder shall be subject to the following conditions: (A) unlessotherwise agreed by the Borrower and the Administrative Agent, the Commitmentof any New Lender shall not be less than $10,000,000; (B) unless otherwiseagreed by the Borrower and the Administrative Agent, the increase in theCommitment of any Lender shall be not less than $5,000,000; (C) aftergiving effect to all Revolving Loan Increase Requests and the Term Loan BRequest, if applicable, (i) the aggregate Commitments shall not exceed$450,000,000 and (ii) the sum of the aggregate of all Revolving LoanIncrease Requests and the Term Loan B Request, if applicable, deliveredhereunder shall not exceed $100,000,000; (D) the Borrower and eachAdditional Lender shall have executed and delivered a Commitment and Acceptanceand the Administrative Agent shall have accepted and executed the same (whichacceptance shall not be unreasonably withheld); (E) the Borrower shallhave executed and delivered to the Administrative Agent a Note or Notes payableto the order of each Additional Lender, each such Note to be in the amount ofsuch Additional Lender’s Revolving Commitment, increased Revolving Commitment,or Term Loan B Commitment (as applicable); (F) the Borrower shall havedelivered to the Administrative Agent an opinion of counsel (similar to theform of opinion delivered on the Closing Date, modified to apply to theincrease in the aggregate Revolving Commitments or the Term Loan B and eachNote and Commitment and Acceptance executed and delivered in connectiontherewith) and resolutions of its board of directors approving such increase inthe aggregate Revolving Commitments or the Term Loan B; (G) the Guarantorsshall have delivered to the Administrative Agent a written instrumentconfirming their consent to the new Revolving Commitments, increased RevolvingCommitments, or Term Loan B Commitments (as applicable) and that the Guarantycontinues in full force and effect and resolutions of the board of directors ofeach of the Guarantors approving the guaranty of such increase in the aggregateRevolving Commitments or the Term Loan B; (H) the Borrower and eachAdditional Lender shall otherwise have executed and delivered such otherinstruments and documents as the Administrative Agent shall have reasonablyrequested in connection with such new Revolving Commitment, increased RevolvingCommitment, or Term Loan B Commitment (as applicable); (I) the Borrowershall have completed and delivered to the Administrative Agent Schedule 2.08 in

 

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#### the form attached hereto setting forth the termsapplicable to the Term Loan B if an addition of the Term Loan B has beenrequested, (J) the Borrower shall pay (i) to the Administrative Agentfor the account of the Additional Lenders an upfront fee related to theaggregate increased Revolving Commitments and Term Loan B Commitments and (ii) tothe Administrative Agent or its affiliate an arrangement fee related to theRevolving Loan Increase Request or the Term Loan B Request (as applicable), andsuch fees shall be in an amount to be determined by the Borrower and theAdministrative Agent, and payable on the Increase Date or Term Loan B AdvanceDate (as applicable); (K) no Default shall exist on the Increase Date orTerm Loan B Advance Date (as applicable) after giving effect to the increase inthe aggregate Revolving Commitments or after giving effect to the making of theTerm Loan B (as applicable); and (L) the maturity date for the Term Loan Bshall be the same or later than the maturity date for the Revolving Loans andTerm Loan A.  The form and substance ofthe documents required under clauses (D) through (I) above shall befully acceptable to the Administrative Agent in its reasonable discretion.  The Administrative Agent shall providewritten notice to Lenders following any such increase in the aggregateRevolving Commitments or the making of the Term Loan B hereunder and shallfurnish to Lenders, upon request, copies of each Commitment and Acceptance.

####  

#### (f)                                    Onthe effective date of any increase in the aggregate Revolving Commitmentspursuant to the provisions hereof (“Increase Date”), which Increase Date shallbe mutually agreed upon by the Borrower, each applicable Additional RevolvingLender and the Administrative Agent, each Additional Revolving Lender shallmake a payment to the Administrative Agent in an amount sufficient, upon theapplication of such payments by all Additional Revolving Lenders to thereduction of the outstanding Revolving Loans held by Revolving Lenders, tocause the principal amount outstanding under such Revolving Loans made by allRevolving Lenders (including any Additional Revolving Lender) to be in theproportion of their respective Revolving Commitments (as of such IncreaseDate).  The Borrower hereby irrevocablyauthorizes each Additional Revolving Lender to fund to the Administrative Agentthe payment required to be made pursuant to the immediately preceding sentencefor application to the reduction of the outstanding Revolving Loans held byeach Revolving Lender, and each such payment shall constitute a Revolving Loan hereunder.  Each Additional Revolving Lender shall alsoadvance ratably in proportion of its respective Revolving Commitment its shareof all Revolving Loans made on or after such Increase Date and shall otherwisehave all of the rights and obligations of a Revolving Lender hereunder on andafter such Increase Date. Notwithstanding the foregoing, upon the occurrence of an Event ofDefault prior to the date on which an Additional Revolving Lender is holdingRevolving Loans equal to its proportionate share of all Revolving Loanshereunder, such Additional Revolving Lender shall, upon notice fromAdministrative Agent, on or after the date on which the Obligations areaccelerated or become due following such Event of Default, pay toAdministrative Agent (for the account of the other Revolving Lenders, to whichthe Administrative Agent shall pay their pro rata shares upon receipt) a sumequal

 

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#### to such Additional Revolving Lender’sproportionate share of each Revolving Loan then outstanding with respect towhich such Additional Revolving Lender does not then hold its proportionateshare thereof.

####  

#### (g)                                 Onthe Increase Date and the making of the Revolving Loans by an AdditionalRevolving Lender in accordance with the provisions of the first sentence ofthis Section 2.08, such Additional Lender shall also be deemed to haveirrevocably and unconditionally purchased and received, without recourse orwarranty, from Lenders party to this Agreement immediately prior to the IncreaseDate, an undivided interest and participation in any Letters of Credit thenoutstanding, ratably, such that all Revolving Lenders (including eachAdditional Lender) hold participation interests in each such Letters of Creditin the proportion of their respective Revolving Commitments (taking intoaccount the increase in the aggregate Revolving Commitments that is effectiveon such Increase Date).

####  

#### (h)                                 EachAdditional Term Loan B Lender severally agrees, on the terms and conditions setforth herein, to make a term loan to the Borrower on the effective date of theTerm Loan B which date shall be mutually agreed upon by the Borrower and theAdministrative Agent (the “Term Loan B Advance Date”).  The Term Loan B shall be made by the severalTerm Loan B Lenders ratably in proportion to their respective Term Loan BCommitments on the Term Loan B Advance Date.

####  

#### (i)                                     Nothingcontained herein shall constitute, or otherwise be deemed to be, a commitmentor agreement on the part of any Lender to increase its Commitment hereunder atany time or a commitment or agreement on the part of the Borrower or theAdministrative Agent to give or grant any Lender the right to increase itsCommitment hereunder at any time.

####  

# SECTION 8.                                Amendmentto Section 2.09.  Section 2.09of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section ****2.09****                            MandatoryReduction and Termination of Commitments.**  The Revolving Commitments shall terminate onthe Termination Date and any Loans then outstanding (together with accruedinterest thereon) shall be due and payable on such date.

 

# SECTION 9.                                Amendmentto Section 2.11.  Section 2.11of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 2.11****                            MandatoryPrepayments.**  On each date onwhich the conditions set forth in Section 2.01 are not satisfied(including, without limitation, by reason of the reduction of the RevolvingCommitments pursuant to Section 2.08 or Section 2.09), the Borrowershall repay or prepay such principal

 

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amount of theoutstanding Revolving Loans, if any (together with interest accrued thereon andany amount due under Section 10.05(a)), as may be necessary so that aftersuch payment the aggregate unpaid principal amount of the Revolving Loans doesnot exceed the aggregate amount of the Revolving Commitments as thenreduced.  If the principal amount of allRevolving Loans have been repaid yet the outstanding Letter of CreditObligations then exceed the Revolving Commitment, the Borrower shall depositcash collateral with the Administrative Agent with respect to such outstandingLetter of Credit Obligations in an amount necessary so that the outstandingLetter of Credit Obligations do not exceed the Revolving Commitments.  Each such payment or prepayment shall beapplied ratably to the Revolving Loans of the Revolving Lenders outstanding onthe date of payment or prepayment in the following order of priority:  (i) first, to Base Rate Loans; and (ii) secondly,to Eurodollar Loans.

 

# SECTION 10.                          Amendmentto Section 3.02.  Section 3.02of the Credit Agreement is hereby amended by inserting “or” immediately beforeclause (c) in such Section.

#  

# SECTION 11.                          Amendmentto Section 3.05.  Section 3.05of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 3.05****                            Reimbursement Obligations; Duties of the Issuing Bank;ISP98.**

 

#### (a)                                  Reimbursement.  Notwithstanding any provisions tothe contrary in any Letter of Credit Application Agreement: (i) theBorrower shall reimburse the Issuing Bank for drawings under a Letter of Creditissued by it no later than the Business Day of payment by the Issuing Bank; (ii) anyReimbursement Obligation with respect to any Letter of Credit shall bearinterest from the date of the relevant drawing under the pertinent Letter ofCredit until the date of payment in full thereof at a rate per annum equal tothe Default Rate; and (iii) in order to implement the foregoing, upon theoccurrence of a draw under any Letter of Credit, unless the Issuing Bank isreimbursed in accordance with clause (i) above, the Borrower irrevocablyauthorizes the Issuing Bank and the Administrative Agent to treat suchnonpayment as a Notice of Borrowing in the amount of such ReimbursementObligation and the Lenders to make Revolving Loans to the Borrower in suchamount regardless of whether the conditions precedent to the making of Loanshereunder have been met.  The Borrowerfurther authorizes the Administrative Agent to credit the proceeds of suchRevolving Loan so as to immediately eliminate the liability of the Borrower forReimbursement Obligations under such Letter of Credit.

####  

#### (b)                                 Duties of the Issuing Bank.  Any actiontaken or omitted to be taken by the Issuing Bank in connection with any Letterof Credit, if taken or omitted in the absence of willful misconduct or grossnegligence, shall not put the Issuing Bank under any resulting liability to anyLender, or, assuming that the Issuing Bank has complied with the proceduresspecified in Section 3.04 and such

 

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#### Lender has not given a noticecontemplated by Section 3.06(a) that continues in full force andeffect, relieve that Lender of its obligations hereunder to the IssuingBank.  In determining whether to payunder any Letter of Credit, the Issuing Bank shall have no obligation relativeto the Lenders other than to confirm that any documents required to have beendelivered under such Letter of Credit appear to comply on their face, with therequirements of such Letter of Credit.

####  

#### (c)                                  Applicability of ISP98.  Unless otherwise expressly agreed by theIssuing Bank and the Borrower when a Letter of Credit is issued the rules ofthe “International Standby Practices 1998” published by the Institute ofInternational Banking Law & Practice (or such later version thereof asmay be in effect at the time of issuance) shall apply to each Letter of Credit.

####  

# SECTION 12.                          Amendmentto Section 3.06.  Section 3.06of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

#### **Section 3.06****                           ****Participations****.**

####  

#### (a)                                  Purchase of Participations.  Immediatelyupon issuance by the Issuing Bank of any Letter of Credit in accordance withthe procedures set forth in Section 3.04, each Revolving Lender shall bedeemed to have irrevocably and unconditionally purchased and received from theIssuing Bank, without recourse or warranty, an undivided interest andparticipation, to the extent of such Revolving Lender’s ratable share of theaggregate Revolving Commitments, in such Letter of Credit; provided, that aLetter of Credit shall not be entitled to the benefits of this Section 3.06if the Issuing Bank shall have received written notice from any RevolvingLender on or before the Business Day immediately prior to the date of theIssuing Bank’s issuance of such Letter of Credit that one or more of theconditions contained in Section 3.03 or Article IV is not thensatisfied, and, in the event the Issuing Bank receives such a notice, it shallhave no further obligation to issue any Letter of Credit until such notice iswithdrawn by that Revolving Lender or until the Required Lenders haveeffectively waived such condition in accordance with the provisions of thisAgreement.

####  

#### (b)                                 Sharing of Letter of Credit Payments.  In the eventthat the Issuing Bank makes any payment under any Letter of Credit for whichthe Borrower shall not have repaid such amount to the Issuing Bank pursuant to Section 3.07or which cannot be paid by a Revolving Loan pursuant to clause (a)(iii) ofSection 3.05, the Issuing Bank shall promptly notify each Revolving Lenderof such failure, and each Revolving Lender shall promptly and unconditionallypay to the Issuing Bank such Revolving Lender’s ratable share of the amount ofsuch payment in Dollars and in same day funds. If the Issuing Bank so notifies such Revolving Lender prior to 10:00 a..m. (Eastern time) on any Business Day, such Lender shall make available to theIssuing Bank its ratable share of the amount of such payment on such BusinessDay in same day funds.  If and to theextent such Revolving Lender shall not have so made its ratable share of theamount of such

 

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#### payment available to the IssuingBank, such Revolving Lender agrees to pay to the Issuing Bank forthwith ondemand such amount together with interest thereon, for each day from the datesuch payment was first due until the date such amount is paid to the IssuingBank at the Federal Funds Rate for the first three (3) days and thereafterat the Base Rate.  The failure of anyRevolving Lender to make available to the Issuing Bank its ratable share of anysuch payment shall neither relieve nor increase the obligation of any otherRevolving Lender hereunder to make available to the Issuing Bank its ratableshare of any payment on the date such payment is to be made.

####  

#### (c)                                  Sharing of Reimbursement Obligation Payments.  Whenever theIssuing Bank receives a payment on account of a Reimbursement Obligation,including any interest thereon, as to which the Issuing Bank has received anypayments from the Revolving Lenders pursuant to this Section 3.06, itshall promptly pay to each Revolving Lender which has funded its participatinginterest therein, in Dollars and in the kind of funds so received, an amountequal to such Revolving Lender’s ratable share thereof.  Each such payment shall be made by theIssuing Bank on the Business Day on which the funds are paid to such Person, ifreceived prior to 10:00 a.m. (Eastern time) on such Business Day, andotherwise on the next succeeding Business Day.

####  

#### (d)                                 Documentation.  Upon the request of any Lender,the Issuing Bank shall furnish to such Lender copies of any Letter of Credit,Letter of Credit Application Agreement and other documentation relating toLetters of Credit issued pursuant to this Agreement.

####  

#### (e)                                  Obligations Irrevocable.  The obligations of the Revolving Lenders tomake payments to the Issuing Bank with respect to a Letter of Credit shall beirrevocable, not subject to any qualification or exception whatsoever and shallbe made in accordance with, but not subject to, the terms and conditions ofthis Agreement under all circumstances (assuming that the Issuing Bank hasissued such Letter of Credit in accordance with Section 3.04 and suchRevolving Lender has not given a notice contemplated by Section 3.06(a) thatcontinues in full force and effect), including, without limitation, any of thefollowing circumstances:  (i) anylack of validity or enforceability of this Agreement or any of the other LoanDocuments; (ii) the existence of any claim, set-off, defense or otherright which the Borrower may have at any time against a beneficiary named in aLetter of Credit or any transferee of any Letter of Credit (or any Person forwhom any such transferee may be acting), the Issuing Bank, the AdministrativeAgent, any Lender or any other Person, whether in connection with thisAgreement, any Letter of Credit, the transactions contemplated herein or anyunrelated transactions; (iii) any draft, certificate or any other documentpresented under the Letter of Credit proves to be forged, fraudulent, invalidor insufficient in any respect or any statement therein being untrue orinaccurate in any respect; (iv) the surrender or impairment of anysecurity for the performance or observance of any of the terms of any of theLoan Documents; (v) payment by the Issuing Bank

 

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#### under any Letter of Credit proving to be forged,fraudulent, invalid or insufficient in any respect or any statement thereinbeing untrue or inaccurate in any respect;****(vi) anyirregularity in the transaction with respect to which any Letter of Credit isissued, including any fraud by the beneficiary or any transferee of such Letterof Credit; or (vii) any other circumstances or happenings whatsoever,whether or not similar to any of the foregoing.

####  

# SECTION 13.                          Amendmentto Section 3.07(b).  Section 3.07(b) ofthe Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

(b)                                 Recovery or Avoidance of Payments.  In the eventany payment by or on behalf of the Borrower received by the Issuing Bank withrespect to a Letter of Credit and distributed by the Issuing Bank to theRevolving Lenders on account of their participations is thereafter set aside,avoided or recovered from the Issuing Bank in connection with any receivership,liquidation or bankruptcy proceeding, each Revolving Lender that received suchdistribution shall, upon demand by the Issuing Bank, contribute such RevolvingLender’s ratable share of the amount set aside, avoided or recovered togetherwith interest at the rate required to be paid by the Issuing Bank upon theamount required to be repaid by it.

 

# SECTION 14.                          Amendmentto Section 3.08(a).  Section 3.08(a) ofthe Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

(a)                                  Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent, forthe ratable account of the Revolving Lenders, with respect to each Letter ofCredit issued hereunder a letter of credit fee (“Letter of Credit Fee”) whichshall accrue at a rate per annum equal to the Applicable Margin applicable tointerest on Eurodollar Loans on the average daily amount of the Letter ofCredit Obligations during the period from and including the date hereof to butexcluding the date on which the Commitments terminate.  Letter of Credit Fees shall be payable oneach Quarterly Payment Date and on the Termination Date.  The Administrative Agent shall promptly remitsuch Letter of Credit Fees, when paid, to the Revolving Lenders in accordancewith their ratable shares thereof.  TheBorrower shall pay to the Administrative Agent, for the account of the IssuingBank, a fronting fee equal to 0.125% per annum of the face amount of suchLetter of Credit, payable on the Business Day on which such Letter of Credit isissued.

 

# SECTION 15.                          Amendmentto Section 4.02.  Section 4.02of the Credit Agreement is hereby amended by deleting “clauses (i) and (ii) of”in clause (d) of such Section.

#  

# SECTION 16.                          Amendmentto Section 5.05.  Section 5.05of the Credit Agreement is hereby amended by inserting “(except as otherwisedisclosed in the SEC Filings)” after the words “Material Adverse Effect” insuch Section.

 

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# SECTION 17.                          Amendmentto Section 6.01(c).  Section 6.01(c) ofthe Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

(c)                                  simultaneouslywith the delivery of each set of financial statements referred to in paragraphs(a) and (b) above, a Compliance Certificate (i) setting forth inreasonable detail the calculations required to establish whether the Borrowerwas in compliance with the requirements of Sections 7.02, 7.04, 7.06, 7.07,7.08(k) and 7.12 on the date of such financial statements; (ii) statingwhether any Default exists on the dateof such certificate and, if any Default then exists, setting forth the detailsthereof and the action which the Borrower is taking or proposes to take withrespect thereto; and (iii) setting forth the Total Leverage Ratio as ofthe most recent Performance Pricing Determination Date and the ApplicableMargin for Eurodollar Loans in effect as a result thereof;

 

# SECTION 18.                          Amendmentto Section 6.03.                                           Section 6.03of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

## **Section 6.03****                            Conductof Business and Maintenance of Existence.**  Each Loan Party will, and will cause eachSubsidiary to, maintain its corporate existence and carry on its business insubstantially the same manner and in substantially the same fields as suchbusiness is now carried on and maintained; provided that no Permitted AffiliateTransaction shall be deemed a breach of this Section 6.03.

##  

# SECTION 19.                          Amendmentto Section 6.08.  Section 6.08of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 6.08****                            Subsidiaries.**

 

(a)                                  EachLoan Party shall cause any Person which becomes a Domestic Subsidiary after theClosing Date to become a party to this Agreement, and to agree to be bound bythe terms of the Guaranty (other than the representations and warrantiescontained herein), pursuant to a joinder instrument in form and substancereasonably satisfactory to the Administrative Agent (a “Joinder”) and executedand delivered to the Administrative Agent within Twenty (20) Business Daysafter the day on which such Person became a Domestic Subsidiary.  No later than ninety (90) days from the dayon which such Person became a Domestic Subsidiary, such Domestic Subsidiaryshall deliver a certificate to the Administrative Agent, certifying that therepresentations and warranties contained in this Agreement are true, accurateand complete in every material respect with regard to such DomesticSubsidiary.  Notwithstanding theforegoing, until such certificate is received by the Administrative Agent, uponthe execution of a Joinder, such Domestic Subsidiary shall be treated under theterms of this Agreement as if it was a Foreign Subsidiary, except that suchDomestic Subsidiary shall be a Guarantor hereunder only for purposes of Article XI.  Each

 

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Loan Partyshall also cause the items specified in paragraphs (c) and (f) of Section 4.01with respect to each new Guarantor to be delivered to the Administrative Agentconcurrently with the Joinder, modified appropriately to refer to such instrumentand such Domestic Subsidiary.

 

(b)                                 Withinthirty (30) days of the Amendment Date and at any time thereafter that theBorrower or any Domestic Subsidiary owns equity interests of a First TierForeign Subsidiary, Borrower shall, and shall cause each Domestic Subsidiaryowning the equity interests of a First Tier Foreign Subsidiary to, pledge 51%of the First Tier Foreign Subsidiary Voting Equity of such First Tier ForeignSubsidiary, to the Administrative Agent for the benefit of the Lenders assecurity for the Obligations or the Guaranty of such Domestic Subsidiary, asapplicable, pursuant to a pledge agreement in form and substance reasonablysatisfactory to the Administrative Agent.

 

(c)                                  TheBorrower shall give the Administrative Agent thirty (30) days’ prior writtennotice of any Permitted Affiliate Transaction which will result in a First TierForeign Subsidiary changing to a Foreign Subsidiary other than a First TierForeign Subsidiary or merging with and into another Foreign Subsidiary.  In such event, the Lenders hereby authorizethe Administrative Agent to, and Administrative Agent shall, execute at thetime of such Permitted Affiliate Transaction a release and termination of thepledge of the equity interests of such First Tier Foreign Subsidiary executedpursuant to Section 6.08(b) above. Notwithstanding anything to the contrary herein, this Section 6.08(c) maybe amended or waived if such amendment or waiver is in writing and is signed bythe Borrower and the Required Lenders.

 

# SECTION 20.                          Amendmentto Section 6.09.  Section 6.09of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 6.09****                            Sources and Uses Statement. **Contemporaneously with the closing of any of the Anticipated Acquisitions, the Borrower shall deliver to the AdministrativeAgent a sources and uses statement, in form and substance reasonably acceptableto the Administrative Agent, regarding such Anticipated Acquisition.

 

# SECTION 21.                          Amendmentsto Section 7.01.  Section 7.01of the Credit Agreement is hereby amended by deleting “Section 7.06” andinserting “Sections 7.06 and 7.07” in lieu thereof.

#  

# SECTION 22.                          Amendmentto Section 7.02.  Section 7.02of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 7.02****                            Consolidations, Mergers and Sales of Assets.** None of the Loan Parties will, nor permit any Subsidiary to, consolidateor merge with or

 

23

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into, or sell,lease or otherwise transfer all or any substantial part of its assets to, anyother Person, or discontinue or eliminate any business line or segment, otherthan a Permitted Affiliate Transaction.

 

# SECTION 23.                          Amendmentto Section 7.04.  Section 7.04of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 7.04**                            **Transactions with Affiliates.**  No Loan Party nor any Subsidiary will enterinto, or be a party to, any transaction with any of its Affiliates, except forthe Permitted Affiliate Transactions.

 

# SECTION 24.                          Amendmentto Section 7.06.  Section 7.06of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 7.06****                            Investments. **Neither any Loan Party nor any Subsidiarywill make Investments in any Person except (i) loans or advances toemployees not exceeding $5,000,000 in the aggregate principal amountoutstanding at any time, in each case made in the ordinary course of businessand consistent with practices existing on the Closing Date; (ii) depositsrequired by government agencies or public utilities, (iii) Investments indirect obligations of the United States Government maturing within one year, (iv) Investments in certificates ofdeposit issued by a commercial lender whose credit is satisfactory to theAdministrative Agent, (v) Investments in commercial paper rated A1 or theequivalent thereof by S&P or P1 or the equivalent thereof by Moody’s and ineither case maturing within six (6) months after the date of acquisition, (vi) Investmentsin tender bonds the payment of the principal of and interest on which is fullysupported by a letter of credit issued by a United States bank whose long-termcertificates of deposit are rated at least AA or the equivalent thereof byS&P and Aa or the equivalent thereof by Moody’s, (vii) Investments inDomestic Subsidiaries that are Guarantors to the extent that such Investmentsare not otherwise prohibited by this Agreement, (viii) PermittedAcquisitions, other than Foreign Acquisitions which are not AnticipatedAcquisitions, (ix) any Investments permitted by Borrower’s Policy andProcedure Number AF-14 – titled Investment Policy Statement and Procedure datedeffective as of October 28, 2005, as in effect as of the Closing Date, acopy of which has been provided to the Administrative Agent in connectionherewith, except that any “Strategic Equity Investment” as described in suchpolicy in the aggregate amount in excess of $5,000,000 will require the priorwritten consent of the Required Lenders, (x) Foreign Acquisitions to theextent permitted by Section 7.07, (xi) the Guaranty created by Article XIof this Agreement, and (xii) other Investments (not otherwise included inclauses (i) through (xi) of this Section 7.06) that, when combinedwith Foreign Acquisitions permitted in Section 7.07 at any time on orafter the Amendment Date, do not at any time exceed an aggregate amountoutstanding equal to twelve and one-half percent (12.5%) of Total Assets;provided, however, immediately after giving effect to the making of any

 

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Investmentpermitted under this Section, no Default shall have occurred and be continuing.

 

# SECTION 25.                          Amendmentto Section 7.07.  Section 7.07of the Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

**Section 7.07****                            Acquisitions. **Neither any Loan Party nor any Subsidiarywill consummate any Acquisition other than a Permitted Acquisition; providedthat a Foreign Acquisition shall only be allowed as a Permitted Acquisitionunder this Section 7.07 if, after giving effect to such ForeignAcquisition, the sum of (i) all Investments made under Section 7.06(xii)plus (ii) the aggregate purchase price for all ForeignAcquisitions, in each case occurring at any time on or after the AmendmentDate, does not exceed twelve and one-half percent (12.5%) of Total Assets.

 

# SECTION 26.                          Amendmentto Section 7.08.  Section 7.08of the Credit Agreement is hereby amended by deleting the introductory clauseof such Section and clause (k) of such Section in their entiretyand inserting the following in lieu thereof:

#  

**Section 7.08****                            Limitationon Liens and Debt**.  Neither anyLoan Party nor any Subsidiary will create, assume or suffer to exist any Lienon any asset now owned or hereafter acquired by it or incur any Debt, except:

 

(k)                                  Liensnot otherwise permitted by the foregoing paragraphs of this Section securingDebt (other than indebtedness hereunder), and Debt not otherwise permitted byparagraph (j), in an aggregate principal amount at any time outstanding not toexceed $20,000,000.

 

# SECTION 27.                          Amendmentto Section 9.03.  Section 9.03of the Credit Agreement is hereby amended by deleting “11.05” and inserting“12.05” in lieu thereof.

#  

# SECTION 28.                          Amendmentto Section 10.07(b).  Section 10.07(b) ofthe Credit Agreement is hereby amended by deleting such Section in itsentirety and inserting the following in lieu thereof:

#  

(b)                                 Replacementof Lenders. If any Lender notifies the Borrower in writing of suspension ofits obligations to make, maintain or fund its Eurodollar Loans under Section 10.02,if any Lender requests compensation under Section 10.05, if any Loan Partyis required to pay any additional amount to any Lender or any GovernmentalAuthority for the account of any Lender pursuant to Section 10.06, if anyLender is a Defaulting Lender, or any Lender fails to either (i) maintainan investment grade rating from Standard and Poor’s or Moodys or (ii) maintainassets of at least $500,000,000, then the Borrower may, at its sole expense andeffort, upon written notice to such Lender and the Administrative Agent,require such Lender to assign and delegate, without recourse (in accordancewith and subject to the restrictions contained in, and consents required

 

25

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by, Section 12.07),all of its interests, rights and obligations under this Agreement and therelated Loan Documents to an Eligible Assignee that shall assume suchobligations (which Eligible Assignee may be another Lender, if a Lender acceptssuch assignment), provided that: (A) the Borrower shall have paid to theAdministrative Agent the processing and recordation fee specified in Section 12.07;(B) such Lender shall have received payment of an amount equal to theoutstanding principal of its Loans and participations in Letter of CreditObligations, accrued interest thereon, accrued fees and all other amountspayable to it hereunder and under the other Loan Documents (including anyamounts under Section 10.04) from the Eligible Assignee (to the extent ofsuch outstanding principal and accrued interest and fees) or the Borrower (inthe case of all other amounts); (C) in the case of any such assignmentresulting from a claim for compensation under Section 10.05 or paymentsrequired to be made pursuant to Section 10.06, such assignment will resultin a reduction in such compensation or payments thereafter; and (D) suchassignment does not conflict with applicable law.  A Lender shall not be required to make anysuch assignment or delegation if, prior thereto, as a result of a waiver bysuch Lender or otherwise, the circumstances entitling the Borrower or theAdministrative Agent to require such assignment and delegation cease to apply.

 

# SECTION 29.                          Amendmentto Section 12.01.  Section 12.01(a) ofthe Credit Agreement is hereby amended by deleting all of the clause (ii) andinserting the following in lieu thereof:

#  

“(ii) if to theAdministrative Agent or the Issuing Bank, to it at Agency Services, 3050Peachtree Road, Suite 400, Atlanta, Georgia 30305, Attention of ElizabethJenkins (Telephone No. (404) 279-7479, Telecopier No. (404)995-7665);”

 

## SECTION 29.1.                 Amendments toExhibits and Schedules.  TheExhibits and Schedules to the Credit Agreement are hereby amended by adding Exhibit C-1,Exhibit C-2, Exhibit C-3, Exhibit G, Exhibit H, Exhibit I,Schedule 1.02, and Schedule 2.08, each in the form attachedhereto, and Schedule 4.01(d), Schedule 5.08 and Schedule 5.21to the Credit Agreement is hereby replaced with Schedule 4.01(d), Schedule5.08 and Schedule 5.21 attached hereto.

##  

# SECTION 30.                          Conditionsto Effectiveness.  The effectiveness of thisAmendment, the obligations of the Lenders hereunder, and the obligation of eachTerm Loan Lender to make its pro rata share of the Term Loan, are subject tothe following conditions, unless the Administrative Agent waives suchconditions:

#  

### (a)                                  receiptby the Administrative Agent from each of the parties hereto of either (i) aduly executed counterpart of this Amendment signed by such party or (ii) a facsimiletransmission of such executed counterpart (with the original to be sent to theAdministrative Agent by overnight courier);

###  

### (b)                                 theAdministrative Agent shall have received from the Borrower a duly executed Note forthe account of each Term Loan Lender that has requested the delivery ofa Note pursuant to Section 2.04;

 

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### (c)           the Administrative Agent shallhave received from the Borrower an opinion letter of Sirote & Permutt,P.C., counsel for the Loan Parties, dated as of the date hereof, covering suchmatters relating to this Amendment and transactions contemplated hereby as theAdministrative Agent may reasonably request;

###  

### (d)           the Administrative Agent shallhave received from the Borrower a closing certificate in form and substance satisfactory tothe Administrative Agent, dated as of the date hereof, signed by a principalfinancial officer of the Borrower, to the effect that (i) no Default hasoccurred and is continuing as of the date hereof prior to and after givingeffect to the Term Loan, (ii) the representations and warranties of theBorrower contained in Article V are true on and as of the date hereof, (iii) aftergiving effect to the execution and delivery of this Amendment and the making ofthe Term Loan and any other Loan on the date hereof (i) none of theBorrower or the principal operatingDomestic Subsidiaries listed on Schedule 4.01(d) will (x) be “insolvent,”as defined in Section 1.01 of the Bankruptcy Code, or Section 2 ofeither the “UFTA” or the “UFCA”, or as defined or used in any “Other ApplicableLaw” (for purposes of this Section, “UFTA” means the Uniform FraudulentTransfer Act, “UFCA” means the Uniform Fraudulent Conveyance Act, and “OtherApplicable Law” means any other applicable law pertaining to fraudulenttransfers or acts voidable by creditors, in each case as such law may beamended from time to time), (y) be unable to pay its debts generally assuch debts become due within the meaning of Section 548 of the BankruptcyCode, Section 4 of the UFTA or Section 6 of the UFCA, or (z) havean unreasonably small capital to engage in any business or transaction, whethercurrent or contemplated, within the meaning of Section 548 of theBankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA, and (iv) theBorrower is in compliance with all financial covenants in the Credit Agreementon a pro forma basis after giving effect to the transactions contemplated bythe Amendment and the making of the Term Loan and any other Loans to be made onthe date hereof;

###  

### (e)           the Administrative Agent shallhave received from the Borrower all documents which the Administrative Agent may reasonablyrequest relating to the existence of the Borrower, the corporate authority forand the validity of this Amendment and the Notes delivered in connection herewith, and anyother matters relevant hereto, all in form and substance satisfactory to theAdministrative Agent, including, without limitation, a certificate of theBorrower substantially in the form of Exhibit E, signed by theSecretary or an Assistant Secretary of the Borrower, certifying as to thenames, true signatures and incumbency of the officer or officers of theBorrower authorized to execute and deliver this Amendment and the Notesdelivered in connection herewith, and copies of the following items:  (i) a certified copy of the Borrower’sCertificate of Incorporation, (ii) a certified copy of the Borrower’sBylaws, (iii) a certificate of the Secretary of State of the State ofDelaware as to the good standing of the Borrower as a Delaware corporation, and(iv) a certified copy of the action taken by the Board of Directors of theBorrower authorizing the Borrower’s execution, delivery and performance of thisAmendment andthe Notes delivered in connection herewith;

###  

### (f)            the Administrative Agentshall have received from the Borrower all documents which the Administrative Agent mayreasonably request relating to the existence of each Guarantor, the corporateauthority for and the validity of the Guaranty, and any other matters relevanthereto, all in form and substance reasonably satisfactory to the AdministrativeAgent, 

 

27

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### including, without limitation, a certificate of eachGuarantor substantially in the form of the Officer’s Certificate to be providedby the Borrower, signed by the Secretary or an Assistant Secretary of theapplicable Guarantor, certifying as to the names, true signatures andincumbency of the officer or officers of the applicable Guarantor authorized toexecute and deliver this Amendment, and copies of the following items:  (i) a certified copy of such Guarantor’sCertificate of Incorporation, (ii) a certified copy of such Guarantor’sBylaws, (iii) a certificate of the Secretary of State of the state oforganization of such Guarantor as to the good standing of such Guarantor insuch jurisdiction, and (iv) a certified copy of the action taken by theBoard of Directors or similar governing body of such Guarantor authorizing suchGuarantor’s execution, delivery and performance of the Guaranty and the otherLoan Documents to which such Guarantor is a party;

###  

### (g)           the Administrative Agent shallhave received from the Borrower a Notice of Borrowing;

###  

### (h)           the Administrative Agent shall havereceived from the Borrower a Compliance Certificate;

###  

### (i)            the Administrative Agent shall havereceived from the Borrower final audited financial statements of the Borrowerand its Subsidiaries for the years ended December 31, 2005, 2006, and2007, and unaudited financial statements for the most recent fiscal quarter forwhich such financial statements are available;

###  

### (j)            the AdministrativeAgent shall have received from the Borrower proforma financial projections for the Borrower and its Subsidiaries for 2008,2009, 2010, 2011 and 2012 in form and substance reasonably acceptable tothe Administrative Agent which reflect the effects of the AnticipatedAcquisitions and any other proposed future acquisitions;

###  

### (k)           theAdministrative Agent shall have received from the Borrower a sources and uses statement, in form and substancereasonably acceptable to the Administrative Agent, regarding the Anticipated Acquisitions;

###  

### (l)            the Administrative Agent shall havereceived from the Borrower in immediately available funds all fees and expensesto be paid by the Borrower to the Administrative Agent in connection with thisAmendment including, without limitation, (i) for the ratable account ofeach Lender executing this Amendment an amendment fee equal to (A) theproduct of (1) such Lender’s Commitment immediately after giving effect tothis Amendment on the date hereof multiplied by (B) (1) for allApproving Lenders whose Commitment after giving effect to this Amendment isequal to or greater than $25,000,000, twenty five basis points (.25%), or (2) forall Approving Lenders whose Commitment after giving effect to this Amendment isless than $25,000,000, fifteen basis points (.15%), and (ii) all fees and expenses of WombleCarlyle Sandridge & Rice, PLLC, counsel to the Administrative Agent;

###  

### (m)          the fact that the representations and warranties of theBorrower contained in Article V of the Credit Agreement and Section 2of this Amendment shall be true on and as of the date hereof (except to the extent any such representation orwarranty is expressly made as of a prior date);

 

28

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###  

### (n)           the Administrative Agent shallhave received from the Borrower all consents, approvals and licenses of the boards ofdirectors, shareholders, Governmental Authorities and other applicable thirdparties necessary in connection with the Loan Documents shall have been obtained;

###  

### (o)           the Administrative Agent shall havereceived from the Borrower evidence that no event, act, occurrence or conditionhas occurred which has caused or could reasonably be expected to cause aMaterial Adverse Effect (other than as disclosed in the SEC Filings);

###  

### (p)           the Administrative Agent shall havereceived from the Borrower evidence that, other than as disclosed in the SECFilings and otherwise to the Administrative Agent and the Lenders no materialpending or threatened action, suit, investigation, litigation, bankruptcy orinsolvency proceeding, injunction, order or claim with respect to the Borrower,any of its Subsidiaries, the Loan Documents or the transactions contemplatedthereby; and

###  

### (q)           if the Borrower desiresfunding of a Eurodollar Loan on the datehereof, the Administrative Agent shall have received, the requisite number ofdays prior to the date hereof, a funding indemnification letter satisfactory toit, pursuant to which (i) the Administrative Agent and the Borrower shallhave agreed upon the interest rate, amount of Borrowing and Interest Period forsuch Eurodollar Loan, and (ii) the Borrower shall indemnify the Lendersfrom any loss or expense arising from the failure to close on the anticipatedclosing date of this Amendment identified in such letter or the failure toborrow such Eurodollar Loan on such date.

###  

# For purposesof determining compliance with the conditions specified in this Section, eachApproving Lender shall be deemed to have consented to, approved or accepted orto be satisfied with each document or other matter required under this Section unlessan officer of the Administrative Agent responsible for the transactionscontemplated by this Amendment shall have received notice from such ApprovingLender prior to the date hereof, specifying its objection

#  

# SECTION 31.         No Other Amendment.  Except for the amendments set forth above,the text of the Credit Agreement shall remain unchanged and in full force andeffect.  This Amendment is not intendedto effect, nor shall it be construed as, a novation.  The Credit Agreement and this Amendment shallbe construed together as a single agreement. Nothing herein contained shall waive, annul, vary or affect anyprovision, condition, covenant or agreement contained in the Credit Agreement,except as herein amended, nor affect or impair any rights, powers or remediesunder the Credit Agreement as hereby amended. The Lenders and the Administrative Agent do hereby reserve all of theirrights and remedies against all parties who may be or may hereafter becomesecondarily liable for the repayment of the Notes.  The Borrower promises and agrees to performall of the requirements, conditions, agreements and obligations under the termsof the Credit Agreement, as heretofore and hereby amended, the CreditAgreement, as amended, being hereby ratified and affirmed.  The Borrower hereby expressly agrees that theCredit Agreement, as amended, is in full force and effect.

#  

# SECTION 32.         Representations and Warranties.  The Borrower and the Guarantors****hereby represent and warrant to each ofthe Administrative Agent and the Lenders as follows:

 

29

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### (a)           No Default under the Credit Agreementor any other Loan Document has occurred and is continuing on the date hereof.

###  

### (b)           Each Loan Party has the power andauthority to enter into this Amendment and to do all acts and things as arerequired or contemplated hereunder, to be done, observed and performed by them.

###  

### (c)           This Amendment has been dulyauthorized, validly executed and delivered by one or more authorized officersof each of the Loan Parties and constitutes legal, valid and binding obligationof the Loan Parties enforceable against them in accordance with the termshereof, provided that such enforceability is subject to general principles ofequity.

###  

### (d)           The execution and delivery of thisAmendment and the Loan Parties’ performance hereunder do not and will notrequire the consent or approval of any regulatory authority or governmentalauthority or agency having jurisdiction over any Loan Party, nor be incontravention of or in conflict with any document of formation or organizationwith respect to any Loan Party, including, without limitation, any operatingagreement or bylaws, as applicable, or the provision of any statute, or anyjudgment, order, indenture, instrument, agreement or undertaking, to which anyLoan Party is a party or by which any Loan Party or any Loan Party’s assets orproperties are or may become bound.

###  

# SECTION 33.         Counterparts.  This Amendment may be executed in multiplecounterparts, each of which shall be deemed to be an original and all of which,taken together, shall constitute one and the same agreement.

#  

# SECTION 34.         Governing Law.  This Amendment shall be governed by,construed and enforced in accordance with the laws of the State of Georgia,without reference to the conflicts or choice of law principles thereof.

#  

# SECTION 35.         Consent by Guarantors.  The Guarantors consent to the foregoingamendments.  The Guarantors promise andagree to perform all of the requirements, conditions, agreements andobligations under the terms of the Guaranty, said Guaranty being herebyratified and affirmed.  The Guarantorshereby expressly agree that (1) the Guaranty is in full force and effect,and (2) the “Obligations” secured thereby include the Revolving Loans andthe Term Loan.

#  

# SECTION 36.         Release.  The Loan Parties and each of their Affiliatesacknowledge that the Administrative Agent and the Lenders have fulfilled all oftheir respective obligations under the Credit Agreement and the Loan Documentsand hereby release and forever discharge the Administrative Agent, the Lenders,and their respective representatives, agents, employees, attorneys, successors,directors, officers, parents, affiliates, assigns, and subsidiaries(collectively the “Lender Parties”) of, to, and from any and all claims,defenses, actions, causes of action, suits, controversies, agreements,provisions, and demands in law or in equity, known or unknown (collectively,the “Claims”) which the any Loan Party or any of their respective****Affiliates (collectively, the “Obligors”)ever had, now has, or may have arising for the past or present state of things,against or related to the Lender Parties, through the date hereof, including,but not limited to, Claims related to and arising out of the Credit Agreementthe other Loan Documents.  

 

30

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# Each of the Loan Parties agrees to assume therisk of any and all unknown, unanticipated or misunderstood claims which arereleased hereby.  The foregoing releaseis intended to be effective as a bar to every Claim and all Claims.

#  

# SECTION 37.         Affirmation of Indebtedness.  By executing this Amendment, each of the LoanParties affirms the indebtedness owed to the Lenders with respect to the Loansand agrees that as of the date of this Amendment and after giving effect tothis Amendment, the cumulative outstanding principal balance on the RevolvingLoans is $75,000,000.00, the cumulative outstanding principal balance of theLetter of Credit Obligations is $0.00, and the cumulative outstanding principalbalance on the Term Loan A is $90,000,000.00.

#  

[SIGNATURES PAGES FOLLOW]

 

31

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EXECUTION COPY

 

IN WITNESS WHEREOF,the parties hereto have executed and delivered, or have caused their respectiveduly authorized officers or representatives to execute and deliver, thisAmendment as of the day and year first above written.

 

 
|   | **BORROWER:**                                      |
|--------|----------------------------------------------------|
|   | ** **                                         |
|   | ** **                                         |
|   | **AVOCENT CORPORATION**,  a Delaware   corporation |
|   |                                               | ** ** |
|   |                                               | ** ** |
|   | By:                                                | /s/ Edward H. Blankenship |
|   |                                               | **Edward H. Blankenship** |
|   |                                               | Senior Vice President of Finance, |
|   |                                               | Chief Financial Officer, and Assistant Secretary |
|   |                                               |   |
|   |                                               |   |
|   | **GUARANTORS:**                                    |
|   | ** **                                         |
|   |                                               | ** ** |
|   | **AVOCENT CANADA HOLDING**                         |
|   |                                               | **CORP.,**a Delaware corporation |
|   | **AVOCENT FREMONT, LLC**, a                        |
|   |                                               | California limited liability company |
|   | **AVOCENT HUNTSVILLE CORP.,**an                    |
|   |                                               | Alabama corporation |
|   | **AVOCENT REDMOND CORP.,**a                        |
|   |                                               | Washington corporation |
|   | **AVOCENT TEXAS, LLC**, a Texas limited            |
|   |                                               | liability company |
|   | **CRIMSON ACQUISTION CORP.**, a                    |
|   |                                               | Delaware corporation |
|   | **LANDESK SOFTWARE, INC.**, a                      |
|   |                                               | Delaware corporation |
|   | **OSA TECHNOLOGIES, INC.,**a                       |
|   |                                               | Delaware corporation |
|   |                                               |   |
|   |                                               |   |
|   | By:                                                | /s/ Edward H. Blankenship |
|   |                                               | **Edward H. Blankenship** |
|   |                                               | Vice President and  Chief  Financial Officer |

 

[Signature Page to First Amendment to Credit Agreement]

 

----

 
|   | **CRIMSON  HOLDING CORP.**, a       |
|--------|-------------------------------------|
|   |                                | Delaware  corporation |
|   |                                | ** ** |
|   |                                | ** ** |
|   | By:                                 | /s/ Samuel  F. Saracino |
|   |                                | **Samuel  F. Saracino** |
|   |                                | Vice  President and  Secretary |
|   |                                |   |
|   |                                |   |
|   | **AVOCENT  NEVADA , LLC,** a Nevada |
|   |                                | limited  liability company |
|   |                                |   |
|   |                                |   |
|   | By:                                 | /s/ Edward  H. Blankenship |
|   |                                | **Edward  H. Blankenship** |
|   |                                | Manager |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **REGIONS  BANK**, as Administrative Agent and as a |
|--------|-----------------------------------------------------|
|   | Lender                                              |
|   |                                                |   |
|   |                                                |   |
|   | By:                                                 | /s/ Sean  Kelly |
|   | Sean Kelly                                          |
|   | Senior Vice  President                              |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **SUNTRUST  BANK**, as a Lender |
|--------|---------------------------------|
|   |                            | ** ** |
|   |                            | ** ** |
|   | By:                             | /s/ Kathy  Ott |
|   | Kathy Ott                       |
|   | Vice  President                 |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **LASALLE  BANK**, as a Lender |
|--------|--------------------------------|
|   |                           | ** ** |
|   |                           | ** ** |
|   | By:                            | /s/ Thomas  M. Paulk |
|   | Thomas M.  Paulk               |
|   | Vice  President                |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **WACHOVIA  BANK**, as a Lender |
|--------|---------------------------------|
|   |                            | ** ** |
|   |                            | ** ** |
|   | By:                             | /s/ Todd  Ferguson |
|   | Todd  Ferguson                  |
|   | Vice  President                 |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **JPMORGAN  CHASE**, as a Lender |
|--------|----------------------------------|
|   |                             | ** ** |
|   |                             | ** ** |
|   | By:                              | /s/ Sean  Lynch |
|   | Sean Lynch                       |
|   | Vice  President                  |

 

[Signature Page to First Amendment to Credit Agreement]

 

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|   | **THE  PRIVATE BANK AND TRUST   COMPANY**, as a Lender |
|--------|--------------------------------------------------------|
|   |                                                   | ** ** |
|   |                                                   | ** ** |
|   | By:                                                    | /s/ Zennie  W. Lynch, Jr. |
|   | Zennie W.  Lynch, Jr.                             |
|   | Associate  Managing Directorate                        |

 

[Signature Page to First Amendment to Credit Agreement]

 

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